June 30, 2004

The ACLU Has No Clothes

The Associated Press reports that:

The American Civil Liberties Union sued in federal court to keep the state from shutting down a no-clothing camp for juveniles in late July at the White Tail Park nudist camp in Ivor.

The law was passed in March in response to a weeklong residential camp for 11- to 18-year-olds last June at White Tail. It was the first in Virginia and only the third such au naturel camp for juveniles in the nation, according to the American Association of Nude Recreation.

I am once again cheered by the ACLU's commonsensical defense of our liberties. After all, it's only a nudist camp for 11- to 18-year-olds. What could possibly go wrong? But see United States v. O'Malley, 854 F.2d 1085, 1086 (8th Cir. 1988) (noting that the "Defendant detailed his experiences with a number of children at a nudist camp several years before, and noted that during his stay he became involved with an eleven-year-old girl").

The ACLU had previously encouraged Virginia's (Democratic) Governor to veto the legislation that it is now contesting:

The American Civil Liberties Union of Virginia has asked Governor Mark Warner to veto or amend a bill that bans nudist camps for teens when their parents are not present. In a letter sent to the Governor earlier today, the civil liberties group argues that teens who have permission from their parents should have a right to attend such camps. The ACLU also argues that parents have a right to allow their children to attend such camps.

The camp's manager is equally commensensical, offering this compelling defense:

Mr. Roche said the law discriminates against nude teens. "It singles them out—a church group that lets students take nude showers doesn't need parents there. A youth hockey camp or summer camp doesn't need their parents," he said.

That's a very good point. "Nude" showering at a traditional summer camp is completely indistinguishable from White Tail Park's practices.

The ACLU's lawyers frame the case in this manner:

"Legislators overreacted and in the process they substantially interfered with the right of families to make lifestyle choices," Virginia ACLU executive director Kent Willis said. "Using the overall logic of this law, legislators are now free to prevent children from swimming, playing baseball or riding a bus."

* * *

"These are parents who have raised their kids in a nudist lifestyle, and they—the parents and the kids—view nudity as something natural and ordinary as opposed to something erotic or sexual," said Rebecca Glenberg, the lead attorney.

Again, these are such valid points that I doubt anyone could deny them. The folks who introduce children to a nudist lifestyle are such a uniformly wholesome lot that the mind boggles at the Virginia legislature's "overreaction." No one rationale would dream of associating any risk of pedophilia or child pornography with an enterprise like White Tail Park. But see Sobin v. Moore, No. 897CV1198T17B, 2001 WL 1262850, at *3 n.2 (M.D. Fla. July 28, 2000) (unpublished opinion) (father videotaped own children at Florida nudist camp, including scenes of "the girl walking across monkey bars with Petitioner videotaping her from below the bars; the boy lying face down on a hammock with Petitioner videotaping his genitals falling through the hammock lacing; Petitioner posing the girl on a picnic table with her legs spread and a banana sitting on the table between her legs and Petitioner videotaping her "waist area" from a position of six inches away from her knees"); see also United States v. Diehl, No. ACM 34674, 2004 WL 637896, at *4 (A.F. Ct. Crim. App. Mar. 16, 2004) (unpublished opinion) (testimony from defendant that "[m]any of these images of nude minors were obviously taken at like nudist camps . . . beaches, and campgrounds").

All satire aside, an appellate court in Texas has already addressed the sort of claims being advanced by the ACLU and has correctly rejected the ACLU's position:

The question presented is whether county park rules that ban children's access to a clothing-optional park violate the United States and Texas Constitutions. [Note that the park rule in this case essentially forbade nudism by children even when accompanied by their parents.]

* * *

Because appellants are "naturists" who believe that engaging in nude social activities with their children instills values of body acceptance and other naturist values, they contend that these new rules infringe on their constitutional rights of, inter alia, freedom of expression and privacy, by prohibiting their children from accompanying them to the park. [The appellants also raised "a parent's fundamental right to direct the upbringing of a child."]

* * *

While we agree with appellants' contentions that the Fourteenth Amendment encompasses a general right to direct the upbringing of children, we do not agree that these park rules impede that right. Neither rule prohibits appellants from raising their children according to the naturist philosophy. Rather, the rules impose a restriction on where the practice of this philosophy may occur by establishing an age restriction for admittance to McGregor Park that applies to all families, whether naturist or not.

Central Texas Nudists v. County of Travis, No. 03-00-00024-CV, 2000 WL 1784344, at *1-3 (Tex. App.—Austin Dec. 7, 2000, pet. denied) (unpublished opinion), cert. denied, 534 U.S. 952 (2001).

The Court of Appeals also went on to hold that the First Amendment is also not implicated, that the regulation is subject to mere rational basis review, and that the regulation is constitutionally valid. Id. at *3-6.

Update I: There have been some thoughtful comments raising some additional issues not addressed in my post. They are worth addressing as an update.

First, one commentator thinks that Central Texas Nudists might be distinguishable on the basis of the fact that it involved a public, rather than private location. (The case involved a public park commonly known as "Hippie Hollow" in Austin, Texas.) That is a distinction that I expect the ACLU would make. However, I do not think that a privately-run camp will enjoy much more protection than a restricted-access public park like "Hippie Hollow." See Elysium Institute, Inc. v. County of Los Angeles, 283 Cal. Rptr. 688, 696 (Cal. App. Ct. 1991) ("Although South Florida Free Beaches involved the activity of nude sunbathing on a public beach, the same reasoning is persuasive as to Elysium's activities, which it characterizes as private recreational nudism. Accordingly, we do not consider Elysium's practice of nudism to be a form of speech protected by the federal or state constitutions.").

Second, another commenter suggests that nudism involves expressive rights that are entitled to protection under the First Amendment. There are a couple of problems with this theory, however. As a preliminary matter, one has to remember that the law is rather hostile to claims of nudity as expressive conduct. See City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) ("Being 'in a state of nudity' is not an inherently expressive condition. As we explained in Barnes, however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection."). Legal arguments in behalf of nudism or naturism have fared particularly poorly in this regard. See, e.g., S. Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608, 610 (11th Cir. 1984) ("Because they allegedly are advocating an idea, they maintain that the government cannot absolutely prohibit the form chosen to express it. Although that may be true in other contexts, we agree that '[n]udity is protected as speech only when combined with some mode of expression which itself is entitled to first amendment protection.'"); New England Naturist Ass'n Inc. v. Larsen, 692 F. Supp. 75, 79 (D.R.I. 1988) ("The case law on this subject has uniformly rejected arguments that nude sunbathing on a public beach is Constitutionally protected either as a mode of expression, as a form of association, or as a privacy right. In short, while nudity in the privacy of one's own property and nudity in the context of artistic expression may be protected, it seems clear that nude sunbathing on a public beach is not a right of Constitutional dimension."); Chapin v. Town of Southampton, 457 F. Supp. 1170, (E.D.N.Y. 1978) ("In short, all existing authority indicates that nude sunbathing or swimming is not itself first amendment expression. This court agrees. Although nudity is not in itself obscene, neither is it communicative. Nudity is protected as speech only when combined with some mode of expression which itself is entitled to first amendment protection."); Lacour v. State, 21 S.W.3d 794, 795 (Tex. App.—Beaumont 2000, no pet. h.) ("The State argues that the nudity of Lacour was merely conduct and not expressive conduct, thus not subject to any First Amendment analysis. We agree.").

Once again, one could attempt to make a private versus public distinction regarding the foregoing cases, but, as I have noted, it's not clear that such a distinction is tenable in the first place. Moreover, the situation in the current ACLU case, which involves young minors outside of the presence of their parents and direct parental supervision, provides additional reasons for doubting that any private/public distinction is tenable. Cf. Cf. City of Dallas v. Stanglin, 490 U.S. 19, 27 (1989) ("The city could reasonably conclude, as Couch stated, that teenagers might be susceptible to corrupting influences if permitted, unaccompanied by their parents, to frequent a dance hall with older persons."). If the state can regulate underage dance halls, a fortiori it can regulate teenage nudist camps. In addition, it is important to remember that minors sometimes possess considerably less in the way of First Amendment rights. See Bellotti v. Baird, 443 U.S. 622, 636 (1979) (recognizing that, even where an invasion of freedoms protected First Amendment is concerned, "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults") (internal quotation marks omitted).

Third, a commenter remarks that Virginia's conduct is merely an indication of moral disgust with nudism, rather than reasonable regulation. I take this to be an implicit invocation of Lawrence, which seems to be popularly understood as standing for the proposition that morals legislation is verboten. However, as I note in the original post, there are reasonable concerns about the situation at White Tail Park. In addition to the cases cited in the original post, it does not take much additional searching on Westlaw, for example, to discover a number of cases involving pedophiles and folks in possession of child pornography who also happen to have a cache of (constitutionally protected) nudist magazines that also feature children. In short, I think that the extant caselaw indicates a sufficient correlation between nudism and certain risks concerning children to allow for state intervention in this area.

I also think that it is important to consider the rather remarkable conclusions that might flow from adopting the position that the state cannot regulate in this area. If one adopts the commenter's position, how does one distinguish this case? One finds these sorts of stories in the news with unexpected frequency (i.e., stories in which a mother allows a father, step-father, or boyfriend to "educate" her daughters about sex, or situations in which a parent procures hookers or strippers for the benefit of minor children). There are also those who are prepared to argue that such sexual conduct is not harmful to children in any fashion. Other than our moral disagreement with this position, on what basis do we intrude into the family residence and criminalize this conduct?

Update II: Professor Volokh has cursorily indicated that he too does not think that the White Tail Park is constitutionally protected:

I'm generally for giving parents lots of flexibility in how to raise their children. But even if this law is unwise (and I think the Attorney General's argument is not implausible, though I think nonconsensual nude photos via hidden cameras are a more likely risk than true child porn, which requires photographing lewd nudity, not just nudity as such), I really doubt that the Constitution protects such a right. And the fact that it's talked about as a matter of "privacy" just shows what a malleable and ultimately unhelpful word "privacy" has come to be.
Professor Bainbridge apparently shares Volokh's views as well.

Update III: Clayton Cramer adopts a Thomas-like position, hinting that he finds the law silly but well within the state's power:

If you want to argue that Virginia's law is dumb, or unneeded, that's fine. I might agree with you, if you make the case correctly. I am aware that there are a lot of nudists out there, and they insist that what they do is completely healthy and unerotic. Shouldn't we trust parents to make the right decisions for their kids? Sure, when the ACLU defends the right of parents to make a host of other decisions for their kids: the right to home school them; the right to prohibit them from having sex with adults (a sensitive subject to ACLU, who have lately argued that 14 year olds have a constitutional right to have sex with adults); the right to put them to work in a factory sweat shop at age six; the right to beat them black and blue; and all the rest of the areas where the states, with liberal encouragement, have decided that parents aren't capable of making those decisions.

Obviously, I think that Virginia's legislation is both wise and constitutional.

Posted by Curmudgeonly Clerk at 02:00 PM | Comments (8)

Individual Ready Reserve

There has been much hubbub over the United States Army's Individual Ready Reserve of late. For example, Publius evinces concern over the apparent activation of some IRR soldiers for the reasons articulated by Unlearned Hand, and Professor Leiter renews his predicition of an impending draft on the basis of Federalist No. 84's reaction.

Although I do not think the potential use of IRR soldiers is entirely insignificant, I also think that the aforementioned reactions are highly overstated. For those in the dark about what the IRR even is, Professor Reynolds provides links to some military weblogs that help clarify the situation. From my own past experience in the Army Reserve, I think that I can say without fear of contradiction that the usual reserve contract for enlisted personnel involves a 6-2 commitment (i.e. six years of reserve duty followed by two years in the IRR). At any rate, that's exactly how my contract was drafted. In other words, placement in the IRR and the possibility of activation from the IRR is built into the contract.

First, it is not clear to me how accurate the reporting on the IRR has been. A couple of weeks ago, the Army issued a press release that gave the impression that its IRR-related activities had been misunderstood. But for the sake of argument let's assume that the involuntary call-up story is generally accurate. The relevant "facts," as reported by CNN, are as follows:

As many as 6,500 IRR troops could be called and would be chosen because of critical skills needed in Iraq, such as Military Police, infantry or engineers, Pentagon officials said.

A decision by the Pentagon to call up these troops is expected within the next week, according to officials.

* * *

About 2,000 IRR troops already serve at some capacity with Operation Iraqi Freedom, though many of them volunteered for service, according to Pentagon officials.

The last time a significant number of IRR troops were called to duty was for the Gulf War in 1991, according to Pentagon officials.

* * *

Lt. Gen. Frank Hagenbeck, the Army's deputy chief of staff for personnel, said earlier this month of the Army's troop strength, "We are stretched but we have what we need."

From this story, several observations are self-evident. First, the Army has not yet made any decision. The matter is pending. Second, there are already IRR soldiers on active duty, and there were IRR soldiers on active duty during the first Gulf campaign. So the mobilization of IRR soldiers is neither atypical nor a harbinger of the draft. Third, the Army's contemplated mobilization involves 6,500 soldiers out of a total IRR force pool of 116,162 soldiers. Even if mobilized, that would mean that only approximately 7% of the Army's IRR (which, in turn, makes up about 35% of the Army's entire Ready Reserve force) would be on active duty. Fourth, the contemplated call-up is directed towards a specific subset of soldiers who have been trained in certain military occupational specialties that are presently in high demand (e.g., MPs, 11Bs, and engineers). In other words, it is not a general mobilization.

Viewed with a level head, I don't think that this IRR story is news for anyone other than those who happen to possess the military occupational specialties in demand.

Posted by Curmudgeonly Clerk at 10:16 AM | Comments (3)

Constitution Qua Suicide Pact

I have seen the sentiment that the Constitution is not a suicide pact being bandied about of late. It is a lovely rhetorical flourish to be sure, but it is really nothing more than a conclusory statement. That is, it is a phrase with which one may conclude an argument rather than some useful premise from which a conclusion can be drawn. After all, even as a rule of constitutional construction, its application depends entirely on an assessment of what is "suicidal."

What has primarily caught my eye, however, is the aphorism's attribution. Folks always seem attribute the phrase to Justice Jackson. For example, Professor Bainbridge opens is attack on the result in Rasul v. Bush with the following statement:

US Supreme Court Justice Jackson famously opined that the Constitution "is not a suicide pact."

Technically, Justice Jackson did not write the language that the good professor directly quotes. This quotation is frequently attributed to Jackson, but this simple declarative statement was really penned by Justice Goldberg. Writing in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), Goldberg opined that:

[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.

Id. at 160 (bold font emphasis added).

Justice Jackson did voice a similar sentiment some years earlier. Dissenting in Terminiello v. City of Chicago, 337 U.S. 1 (1949), Jackson wrote that:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Id. at 37 (Jackson, J., dissenting).

Clearly the underlying idea that the two Justices are conveying is rather alike. And Jackson's remark in dissent may well have been the basis for Goldberg's observation. But the phraseology that we typically employ to convey this notion was penned by Goldberg.

There was a very good article on the origins of this phrase in Slate back in January of 2002. Interestingly, in its concluding paragraph, that article notes the very different emphases given to the sentiment in question in Jackson's and Goldberg's opinions. The differing emphases only serves to highlight the conclusory nature of the statement.

Posted by Curmudgeonly Clerk at 09:23 AM | Comments (2)

June 29, 2004


Iraq's apparent answer to The Daily Show sounds like it has real promise:

A journalist stops a man in a Baghdad street and asks about the security situation. The man cheerfully replies: "Security has vastly improved, we used to go home at 7:30 p.m. but now we can stay out as late as 7:45!"

Much like Comedy Central's mock news program when it's at its best, the humor here is not devoid of substance. Today's Wall Street Journal features an article that drives home the gravity of the security situation faced by ordinary Iraqis:

For weeks leading to the day of their younger son's marriage recently, Mrs. Nasser, a devout Christian, says she knelt before a framed poster of the Virgin Mary in her living room and silently prayed, "Please, Lord and Mother Mary, let there be no explosions on Ziad's wedding. Please, God, keep car bombs and guns away from us on Friday. Amen."

Every week, hundreds of Iraqis get married and start new lives. Almost every wedding has to accommodate the security nightmare gripping much of Iraq. Insecurity comes in many forms in Iraq these days: American military actions, terrorist attacks, and robbers and kidnappers targeting ordinary Iraqis for a profit.

Many families don't hold a celebration at all. Those that do usually take extraordinary measures to ensure their guests' safety. Iraqi weddings now start in the early afternoon, for tea or lunch. They end by 5 p.m. so guests can be home before dark.

This is not to say that things could not be (or have not been) worse. As Time reported back in May of 2003:

A chef at Baghdad's exclusive Hunting Club recalls a wedding party that Uday [Hussein] crashed in the late 1990s. After Uday left the hall, the bride, a beautiful woman from a prominent family, went missing. "The bodyguards closed all the doors, didn't let anybody out," the chef remembers. "Women were yelling and crying, 'What happened to her?'" The groom knew. "He took a pistol and shot himself," says the chef, placing his forefinger under his chin.

Last October another bride, 18, was dragged, resisting, into a guardhouse on one of Uday's properties, according to a maid who worked there. The maid says she saw a guard rip off the woman's white wedding dress and lock her, crying, in a bathroom. After Uday arrived, the maid heard screaming. Later she was called to clean up. The body of the woman was carried out in a military blanket, she said. There were acid burns on her left shoulder and the left side of her face. The maid found bloodstains on Uday's mattress and clumps of black hair and peeled flesh in the bedroom. A guard told her, "Don't say anything about what you see, or you and your family will be finished."

However, for the flesh-and-blood people who have to carry on in Baghdad and elsewhere, the difference between the fear of Uday et al. and the fears given voice by Mrs. Nasser may be much like the difference between 7:30 and 7:45.

Posted by Curmudgeonly Clerk at 04:28 PM | Comments (1)

Unusual Statutory Rape Case

So what is one to make of this case?

A Nassau County judge sentenced a Port Washington woman Monday to 60 days in jail and 10 years of probation for raping a 15-year-old boy, officials said.

Marilu Fischetti, 43, was convicted March 18 of third-degree statutory rape, third-degree sodomy and endangering the welfare of a child for sexual acts she committed on March 2, 2003 with her son's 15-year-old friend during the son's slumber party at her home.

* * *

Fischetti will also be required to register for 10 years as a Level 1 sex offender, the lowest of the state's three sex-offender levels, requiring her check in with officials once a year and to report any change of address to the state, Watson said.

According to a prior Newsday story, the defendant had contended at trial that she was innocent, and the jury even made an on-site inspection of her home under the court's supervision in order to assess her defense. All of the offenses of which the defendant was convicted were premised on the 15-year-old victim's legal inability to consent. See N.Y. Penal Law §§ 130.25(b), 130.40(b), 260.10(a). (An online version of New York's Penal Law may be accessed via the State Senate's website.) No physical coercion or other compulsion (i.e., force or violence) appears to have been alleged. See Nassau County D.A.'s Press Release (Mar. 18, 2004).

I am curious to know what reader reactions might be. Setting aside the law, is this factually "rape"? Does the paltry sixty-day sentence adjudicated say something about our convictions in this regard? Does the female perpetrator/male victim dynamic alter our understanding of the situation? (Should it?) Does the fact that this woman was not in a position of authority over the boy (e.g., no teacher-student relationship or the like) have any significance?

Update: The New York Post has an article that provides significant additional details:

The victim's mother told Nassau County Court Judge Jerald Carter that Marilu Fischetti, 43—who was the "team mom" for the boys' hockey squad—was "destructive and selfish" and abused her authority to seduce the victim.

* * *

After sentencing, the victim's mother said the ordeal had taken a toll on her son.

"Most people think that because he's a boy, it's no big deal, but it's almost harder on boys because most people think that boys can't be raped," she said. "They're supposed to be strong, but the social backlash isn't easy to deal with."

Does the role of "team mom" render the case similar to the sort of forbidden teacher-student relations involved in this case? Or is that a stretch?

Posted by Curmudgeonly Clerk at 09:19 AM | Comments (4)

June 26, 2004

Abu Ghraib Lawsuit

Law.com features a story on a civil action filed against civilian contractors in connection with Abu Ghraib:

After numerous conversations and analysis of anti-torture laws and evidence supplied by the leaked Taguba report, the mishmash group of lawyers had a lawsuit. They filed it on behalf of the nine individual plaintiffs and a potential class of 1,000 on June 9 in the Southern District of California in San Diego, where Titan [Corp.] is headquartered. Because his claim had already been filed with the Army, Saleh could not be one of the plaintiffs.

The lawsuit charges CACI [International Inc.], Titan and two individual employees of the companies with a laundry list of offenses. The two most prominent are the civil RICO claim and an Alien Tort Claims Act claim.

* * *

The lawyers considered filing a suit against the federal government for the soldiers' actions, but the right to sue the government for tort claims is limited. Olshansky says they are still researching their options.

* * *

Specific abuses alleged by each of the nine individual plaintiffs are listed in detail. Plaintiff Ahmed was forced to watch his father tortured to death. Plaintiff Ismael was stripped and attacked by dogs. Plaintiff Sami was repeatedly kicked and beaten.

But the complaint contains no specific allegations that individual Titan and CACI employees actually abused the prisoners. Akeel maintains they will find evidence of such conduct during discovery.

In statements denouncing the lawsuit, both Titan and CACI point to a lack of evidence implicating their employees in this lawsuit. But Akeel says his clients have made it clear to him that civilians at the prisons were involved in the abuses.

A copy of the complaint filed in federal court is available in .pdf at the Center for Constitutional Rights' website.

Posted by Curmudgeonly Clerk at 02:45 PM | Comments (0)

June 25, 2004

All's Well That Ends Well

From today's New York Sun:

"Although what I was trying to do was make a rather complicated academic argument about the nature of reelections after highly contested original elections, that is not the way my words, understandably, have been taken," Judge Calabresi wrote in a letter to the circuit's chief judge, John Walker Jr. "I can also see why this occurred, despite my statements at the time that what I was saying should not be construed in a partisan way."

In the one-page letter, which the court released to The New York Sun yesterday, Judge Calabresi apologized four times.

"I am truly sorry and apologize profusely for the episode and most particularly for any embarrassment my remarks may have caused you, my colleagues, and the court," the judge wrote.

Judge Walker circulated the apology yesterday to all members of the court, along with a memorandum in which he suggested that Judge Calabresi's comments ran afoul of ethics rules that forbid judges from entering the political fray.

"Partisan political comments, of course, are violations of the code of judicial conduct. As Judge Calabresi has acknowledged, his remarks reasonably could be—and indeed have been—so understood, whatever his intent," Judge Walker wrote. He also warned his colleagues to avoid repeating Judge Calabresi’s mistake.

(Link via Howard Bashman, who provides links to additional coverage here.)

Update: Professor Volokh has posted the text of Judge Calabresi's letter of apology.

Posted by Curmudgeonly Clerk at 08:30 AM | Comments (1)

June 24, 2004

More On Judicial Ethics

Asserting the impropriety of this judge's conduct will probably not occasion any controversy.

(Link via Obscure Store.)

Posted by Curmudgeonly Clerk at 10:49 AM | Comments (1)

June 23, 2004

Florida Recount Results

Andrew Seifter of Media Matters has taken to task the Wall Street Journal's editorial page for claiming that, "Bush won the last election under every single vote recount, including those painstakingly run by the media." The only evidence that Seifter cites to the contrary is a National Opinion Research Center study.

I may be missing it somewhere amongst the NORC study's internal hyperlinks, but I have been unable to find any specific data that supports Seifter's statement. (Though this CNN story suggests similar findings, but also notes some limitations concerning the NORC study.) At any rate, the study expressly disavows any intention of determining who really won in Florida (viz. "[T]he project does not identify "winners." Its goal is to assess the reliability of the voting systems themselves, using the highest standards of scientific accuracy and reliability.") Perhaps, the data is there somewhere and I have simply overlooked it. However, I have a little trepidation about taking Media Matter's word for it given the fact that the likes of David Brock sits on its editorial board.

So I did a quick Google search to see what is available online. I immediately found a few items. The PBS NewsHour indicated that, under all but the most generous standards, a recount would have favored Bush:

In the first full study of Florida's ballots since the election ended, The Miami Herald and USA Today reported George W. Bush would have widened his 537-vote victory to a 1,665-vote margin if the recount ordered by the Florida Supreme Court would have been allowed to continue, using standards that would have allowed even faintly dimpled "undervotes"—ballots the voter has noticeably indented but had not punched all the way through—to be counted.

The study, conducted by the accounting firm of BDO Seidman, counted over 60,000 votes in Florida's 67 counties, tabulating separate vote totals in several standards categories.

While the USA Today report focused on what would have happened had the Florida Supreme Court-ordered recount not been halted by the U.S. Supreme Court, the Herald pointed to one scenario under which Gore could have scored a narrow victory—a fresh recount in all counties using the most generous standards.

In other words, unless actions were undertaken that even Vice President Gore's lawyers had not sought, Bush would have prevailed. Another NewsHour report is much the same, specifying, however, that had the "overvotes" been counted, Gore would have prevailed. A CNN story leads with the Bush-victory-confirmed-by-recount angle, but then offers more than one scenario in which Gore would have prevailed. Wikipedia has a nifty chart that breaks out the results depending on the recount procedure adopted. (If other useful data is available on the web, feel free to include a link in the comments.)

Given the minimal evidence that I have considered, I do think that I would offer a far more qualified statement regarding what the recounts demonstrated. Any universal statement, including the one made by the WSJ, is bound to be less than accurate. Inherent difficulties with these analyses includes (a) deciding which recount standard is the "correct" one, and (b) subjectivity in applying whatever standard happens to be chosen.

Nonetheless, the WSJ is, perhaps, correct in its overarching point. The WSJ editorial board's remark concerning recounts was triggered by Judge Guido Calabresi's contention that the Supreme Court had illegitimately placed President Bush in the White House. However, had the United States Supreme Court declined to intervene and the recounts proceeded under the standards advocated by Gore, Gore still would have lost by 225 votes. In other words, Bush would have ascended to the presidency even without the Supreme Court's intervention. I can find no evidence that any organization has ever found that Gore would have won had the recount continued as per his own preferred methodology. It seems somewhat questionable to brand the Court's conduct illegitimate, given the inevitability of the outcome, particularly when that inevitability was the result of Gore's own litigation strategy.

Update: Will Baude responds. I am not completely sure how to reply, as I do not fully understand his post. (The lack of comprehension may well be mine and not his.) However, I will do my best, and hopefully this will clarify matters.

As near as I can tell, what we are really arguing about when we talk about Bush v. Gore is the result, not the reasoning. This is not to say that folks have not criticized the reasoning of the majority, but almost none of the decision's critics appear to think that the outcome would have been more palatable if rendered on the basis of the far more persuasive reasoning offered in the concurrence. Assertions of illegitimacy are, therefore, premised on the outcome: Bush's elevation to the presidency. It seems clear enough from Calabresi's remarks, which are what started this conversation in the first place, that the result is what he considers illegitimate. If he were really critiquing the reasoning of Bush v. Gore, he would have argued for the opinion to be overruled rather than for Bush to be ousted.

Having laid that groundwork, let's look at the numbers. There are two sets of numbers that we, perhaps, ought to consider. First, what if the recount had continued under the methodology advocated by Vice President Gore and his lawyers? Well, according to this chart (which is based on the NORC survey data that Media Matters cites, by the way), Bush would have prevailed by 225 votes. Second, what would have happened if the Supreme Court had not stopped the recount? The same chart details that Bush would have won by 493 votes. In other words, as the summary accompanying the chart notes, "Bush would have won if the United States Supreme Court had allowed the manual recount of the votes that the Florida Supreme Court had ordered to go forward." That is, if the Supreme Court had not intervened whatever and let the Florida high court's ruling stand, Gore still would have lost. Only when we consider counterfactual recount methods after-the-fact that were not advocated by Vice President Gore does any other result obtain.

Do these facts render the majority opinion in Bush v. Gore more persuasive? Of course not. Likewise, to the extent that one might think that the Supreme Court should have never got involved, these recount facts would not change one's opinion on that score either. But what the numbers do show is that Bush was going to be declared president no matter what the Supreme Court did. Although, as a matter of historical fact, the Supreme Court did declare Bush president, we now know that the Bush presidency is not dependent on this decision.

Why is this important? Well, let's return to Calabresi:

"In a way that occurred before but is rare in the United States . . . somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore. It put somebody in power," said Guido Calabresi, a judge on the 2nd Circuit Court of Appeals, which sits in Manhattan.

Calabresi does not cast aspersions on the institutional legitimacy of the Supreme Court; indeed, he refers to it as "a legitimate institution." Nor does he dispute that the Supreme Court had the right to intervene and decide the issue; he notes that it "had the right to put somebody in power." We are left to puzzle over what these "illegitimate acts" of the Supreme Court are then. As I have indicated, it cannot just be that Calabresi is disapproving of the reasoning in Bush v. Gore, because his proposed remedy (i.e., electing someone other than Bush this November) is utterly divorced from the Court's opinion. No, what Calabresi is angry about is that, by his lights, the Supreme Court put the wrong "somebody" in power. And, as near as I can tell, the contention that underlies this illegitmacy argument is the notion that, but for the Court's shenanigans, Gore would have prevailed. But this simply is not true.

And, incidentally, the general idea that I am conveying here is one with which Judge Calabresi (as well as any practicing lawyer) is all too familar: harmless error. The concept of harmless error is pervasive in American law. See, e.g., Fed. R. Civ. P. 61; Fed. R. Crim. P. 52(a). The basic idea is that, even when a court commits an error, unless it is so substantial as to have affected the outcome of the case, it is no grounds for complaint. We don't demand perfect trials after all, just fair ones. Given the recount facts, I think the same basic reasoning is applicable to the result in Bush v. Gore. However mistaken the Court's intervention and subsequent opinion might have been, its errors simply did not affect (let alone effect) the outcome.

Posted by Curmudgeonly Clerk at 07:06 PM | Comments (12)

Calabresi Yet Again

At least one attendee of the ACS national convention at which Judge Calabresi made his controversial remarks claims that the judge's remarks have been unfairly characterized. However, he offers nothing in the way of specifics concerning Calabresi's remarks. There is a follow-up story in the New York Sun today that directly quotes Calabresi as opining that:

"When somebody has come in that way, they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power," Judge Calabresi told the legal group, the American Constitution Society.

"One of the things that is at stake is the assertion by the democracy that when that has happened, it is important to put that person out regardless of policies, regardless of anything else," the judge said. "That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy."

I think those remarks, if accurate, support the charge that Judge Calabresi has violated Canon 7(A)(2) of the Code of Conduct. (Incidentally, having ignited this conflagration, Judge Calabresi now declines to comment on his remarks, according to the Sun article.) Even those disinclined to so interpret the Canon ought to concede that it treads so close to the Canon that a prudent judge would refrain from making such remarks. Law Professor Ronald Rotunda expresses precisely this sentiment in the Sun article:

"I can’t imagine there'd be an ethics professor in the country that would advise Calabresi to do this."

The article does quote one law professor who, while he never comments on the advisability of such comments, does indicate that he thinks they were premissible: Stephen Gillers. Here is what Gillers had to say:

"I believe that in his mind, he was not speaking politics. He was not hiding his distaste for the president, which everybody knows, but he was making a point about political legitimacy, political authenticity, and democratic theory," Mr. Gillers said.

Mr. Gillers said the judge was entitled to some latitude because he was speaking at a legal conference and not to the general public. "He was being slightly hyperbolic as a way of attracting attention to the fine intellectual point he wanted to make," he said.

I have three quick observations. First, although Judge Calabresi's intentions are by no means irrelevant, judicial ethics are not subjective matters soley dependent on the intent of the actor. Second, the fact that Gillers considers direct comparisons to the mid-twentieth century fascist assumption of power in Europe as "slightly hyperbolic" says a good deal about Gillers's own reasonableness. Third, Gillers's assessment seems awfully disingenuous when contrasted with his past remarks on judicial ethics. See Adam Liptek, Low Profile Eludes Conservative Justice; Scalia Attacks Court Decisions of Past, Chicago Tribune, May 2, 2004, at 14, available at 2004 WL 77188613 ("Stephen Gillers, who teaches judicial ethics at New York University, said Scalia is not behaving as a justice should. 'Scalia is calling undue attention to himself, by mixing it up publicly in a way we associate with players, not referees, which is what a judge is supposed to be,' Gillers said."). The notion that remarks delivered at the ACS's annual convention, which is obviously being covered by at least one journalist, are somehow not "public" is simply odd, particularly given the fact that the ACS actually made transcripts of last year's convention publicly available on the Internet.

Update I: I have been thinking about Gillers's defense of Calabresi and I am moved to comment about an additional shortcoming of his argument. Gillers opines that:

"He was being slightly hyperbolic as a way of attracting attention to the fine intellectual point he wanted to make."

Set aside the rest of the debate about ethics for a moment, and concentrate on matters rhetorical. If you want to make a "fine intellectual point," invoking fascist Italy and Nazi Germany as historical parallels is not a very good way to go about it. In fact, there is something of an online convention that anyone who references the Nazis in political arguments is short on "fine intellectual points." It is a rhetorical dead end; it alienates reasonable folks and ends dialogue. As a consequence, no thoughtful speaker who wishes to be heard employs this hackneyed device. I think that this point may be generalized concerning inflammatory rhetoric. No one who wants to have a serious discussion about arson begins by shouting "Fire!" in a crowded auditorium, so to speak.

Update II: I think that there are other reasons for being skeptical of Gillers's assessment of Calabresi's remarks. Concerning the remarks that (rightfully) prompted Justice Scalia's recusal in Newdow, Gillers's opined that:

But "Justice Scalia slipped" in his Fredericksburg comments, Gillers says. "He was before a friendly audience, and it was clearly unintentional." Once his remarks were reported, Gillers believes Scalia would have recused even without Newdow's request.

Tony Mauro, Risky Strategy Leads to Scalia Recusal in Pledge of Allegiance Case, Texas Lawyer, Oct. 20, 2003, at 10; see also Gina Holland, Colorful Justice Takes Step Back, Deseret Morning News, Oct. 16, 2003, at A10, available at 2003 WL 65884763 (reporting similar comments by Gillers).

Although the contexts are somewhat different, I think that it highlights some potential inconsistencies in Gillers's reasoning. As with Calabresi, Scalia did not intend to run afoul of an ethical rule. Likewise, Calabresi's remarks, like Scalia's, were made before a friendly and limited audience. Scalia's remarks initially went unnoticed. (They were delivered January 12, 2003, but the controversy did not erupt until much later.) Yet, once the remarks became publicly known, Gillers regarded them as being "public." One wonders how far Gillers would go in defending the distinctions that he has articulated.

Update III: Yesterday, the New York Post ran an editorial calling for Judge Calabresi's recusal in cases involving the Bush administration or resignation. Both of those suggested remedies for his remarks are, of course, unwarranted. However, an editorial in today's Wall Street Journal strikes me as being closer to the mark:

Mr. Calabresi's remarks violate the judicial Code of Conduct that says judges may not "publicly endorse or oppose a candidate for public office." He surely understands this, since he made a point of noting that his comments about expelling Mr. Bush had "nothing to do with the politics of it. It's got to do with the structural reassertion of democracy." Sure.

The code of conduct isn't a political invention, but was devised by judges themselves to protect the integrity and independence of the judiciary. When judges start letting their partisan passions interfere with their, well, judgment, it's time for their colleagues to start imposing some discipline, if not sanctions.

(Thanks to Howard Bashman for tipping me off to both editorials.)

Update IV: I think that it is unfair to universally hold speakers/writers accountable for their listeners'/readers' reactions. But Calabresi's case is not helped by some of the folks who are rallying around his remarks. For examples, consult the comments to this post. Or, for a similarly unhinged and uninformed pseudo-defense of Calabresi delivered in a single shrill voice, see this post.

Posted by Curmudgeonly Clerk at 11:28 AM | Comments (6)

Foreign Precedents

Judge Posner has penned a savvy column on the role of foreign precedent in American law. One of the most important of Posner's insights is that federal judges are, by and large, simply unqualified to offer the definitive interpretations of foreign law that are a necessary predicate to comparative exercises:

The second problem with citing foreign decisions in U.S. courts is that they emerge from a complex socio-historico-politico-institutional background of which our judges, I respectfully suggest, are almost entirely ignorant. (Do any of the Supreme Court justices know any foreign languages well enough to read a judicial decision that is not written in English? And are translations of foreign decisions into English reliable?)

To know how much weight to give to, say, the decision of the German Constitutional Court in an abortion case, you would want to know such things as how the judges of that court are appointed and how German constitutional judges conceive of their role. You would especially want to know how German attitudes toward abortion have been shaped by peculiarities of German history, notably the abortion jurisprudence of the Weimar Republic, which is thought to have set the stage for some of Nazi Germany's legal atrocities, such as involuntary euthanasia. And, speaking of history, it seems highly likely that the European rejection of the death penalty, which advocates of abolition in the United States cite as evidence for an emerging international consensus that ought to influence our Supreme Court, is related to two things: the past overuse of the penalty by European nations (think only of the executions for petty larceny in 18th-century England, the Reign of Terror in France, and the rampant employment of the death penalty by Nazi Germany and the Soviet Union); and the less democratic cast of European politics, which makes elite opinion more likely to override public opinion there than in the United States. For example, public opinion in the United Kingdom supports the death penalty as strongly as public opinion in the United States does, yet Parliament repealed the death penalty (except for some military crimes) in 1965 and has since steadily refused to reconsider. To cite foreign law as authority is to flirt with the discredited (I had thought) idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience.

This observation is not necessarily a novel one, but it nicely reiterates a limitation that self-styled cosmopolitans both on and off the Court seem to overlook with some frequency. The Court has implicitly acknowledged the federal judiciary's institutional incompetence concerning foreign law in at least one context. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251 (1981) ("If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice-of-law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions."). Indeed, "[t]he doctrine of forum non conveniens . . . is designed in part to help courts avoid conducting complex exercises in comparative law." Id.

Posted by Curmudgeonly Clerk at 10:01 AM | Comments (3)

June 22, 2004

Caesar's Wife (And Calabresi's)

Noting this article, Howard Bashman quips: "At least Second Circuit Judge Guido Calabresi isn't out picketing President Bush." Or was he?

The referenced Associated Press article contains this passage:

About 50 protesters gathered at Levin's home Sunday afternoon. They denounced the president and the war in Iraq, while holding signs saying "Uproot Bush" and "Resist This Endless War."

The crowd was a mix of students and older Yale graduates.

Anne Tyler Calabresi, 69, of Woodbridge, said she was protesting on behalf of herself and her husband, 2nd Circuit Judge Guido Calabresi, a Yale graduate and former dean of the Yale School of Law.

"I'm profoundly worried about the way this country is going," she said. "And I'm furious about the lies George Bush has told to us again and again. He has led us into a war that is destroying our reputation around the world and creating implacable enemies around the world that we didn't have one year ago."

Note, in particular, Mrs. Calabresi's apparent representation that she was protesting "on behalf" of here husband as well. Even assuming the incident was accurately reported, the word "behalf" has some genuine ambiguity. Might such conduct run afoul of judicial ethical constraints depending on the circumstances?

At least one law professor thinks so, and his argument is not bereft of merit. Consider this passage from Vincent R. Johnson's Ethical Campaigning for the Judiciary, in which he discusses Texas's equivalent Code of Conduct:

The Code of Judicial Conduct does not attempt to regulate the political activities of a judge or judicial candidate's spouse. . . . A reasonable argument can be made that it is unethical for a judge to induce his or her spouse to engage in the very activities that the judge is prohibited from undertaking. It is a basic principle of legal ethics that one cannot do indirectly what one is prohibited from doing directly. Thus, Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct prohibits an attorney not only from personally violating the ethics rules but also from "do[ing] so through the acts of another." It would seem that, as a matter of sound policy, the same rule should apply to judges. In a decision suggestive of this principle, a recent Indiana court reprimanded a judge for purporting to make an improper campaign contribution in the name of his spouse. Of course, the law has long abandoned the questionable fiction that the husband and the wife are one; and therefore there should be a presumption that a spouse has acted independently in undertaking any political activities in which he or she has chosen to engage. Some cases have taken the principle against indirect unethical conduct to considerable lengths.

29 Tex. Tech. L. Rev. 811, 845 (1998).

Such a rule would, however, be enormously difficult to administer in most situations. Indeed, this rule is fraught with enough difficulties that the costs of enforcing it almost certainly outweigh any potential benefits. Of course, Canon 2's vague admonishment against even the "appearance of impropriety" presents similar hardships.

Posted by Curmudgeonly Clerk at 04:04 PM | Comments (4)

Transgender Murder (Mis)Trial

I previously discussed the very interesting sexual provocation manslaughter defense being raised by defendants in a California murder trial. The Uncivil Litigator offered a different perspective on the matter as well. And, apparently, the jurors were as divided as the Uncivil Litigator and I were, as the judge declared a mistrial today after it was clear that the jury was hopelessly deadlocked after nine days of deliberations. One wonders if the case will go to trial again or the state will accept manslaughter pleas.

Additional coverage of the trial may be found here.

Posted by Curmudgeonly Clerk at 02:52 PM | Comments (0)

Calabresi Cont'd

I have updated the original post on this topic. Readers may be particularly interested in the third update, which contains a discussion of the (ir)relevance of Republican Party of Minnesota v. White.

Posted by Curmudgeonly Clerk at 12:07 AM | Comments (0)

June 21, 2004

Disappearing Domain

Ernie the Attorney is having some sort of domain problem, but his weblog can be located here for the time being.

Posted by Curmudgeonly Clerk at 05:13 PM | Comments (0)

Calabresi's Improper Remarks

Today's New York Sun features this report on the public remarks of Second Circuit Judge Guido Calabresi:

A prominent federal judge has told a conference of liberal lawyers that President Bush’s rise to power was similar to the accession of dictators such as Mussolini and Hitler.

* * *

"The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy," Judge Calabresi continued, as the allusion drew audible gasps from some in the luncheon crowd Saturday at the annual convention of the American Constitution Society.

"The king of Italy had the right to put Mussolini in, though he had not won an election, and make him prime minister. That is what happened when Hindenburg put Hitler in. I am not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual," the judge said.

The 71-year-old judge declared that members of the public should, without regard to their political views, expel Mr. Bush from office in order to cleanse the democratic system.

"That’s got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy," Judge Calabresi said.

His remarks were met with rousing applause from the hundreds of lawyers and law students in attendance.

It is hard to take Calabresi's structural argument seriously; the argument is a political one. The structural soundness of our government does not rest on the election or defeat of a single man. And it is disheartening to see a judge publicly abandon all pretense of political neutrality. Calabresi's remarks will certainly do little to dispel the already popular notion that federal judges are just politicians in robes.

Judge Calabresi apparently does not view his remarks as being political in nature. At the same forum, he acknowledged that:

"I'm a judge and so I’m not allowed to talk politics. So I'm not going to talk about some of the issues that were mentioned or what some have said is the extraordinary record of incompetence of this administration," he said.

There is just one problem with Calabresi's apparent impression that his remarks were apolitical: the Code of Conduct for United States Judges expressly states otherwise. In particular, the Code explicitly prohibits federal judges from:

mak[ing] speeches for a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office . . . .

Canon 7(A)(2) (bold font emphasis added).

In the past, I have advocated according judges broad free speech rights. I retain this position. In general, I think more harm comes from muzzling judges than from letting them freely speak, even on topics that intersect with politics. What constitutional issue does not have a political dimension, after all.

But Judge Calabresi's remarks go too far. His speech constitutes an unambiguous violation of the Code of Conduct. He has improperly publicly declared opposition to a specific political candidate (and thereby implicitly endorsed another). Such brazen politicking from members of the federal bench cannot be tolerated.

(Sun link via How Appealing.)

Update I: Quite apart from the issue of whether Judge Calabresi should be advocating Bush's removal from office, Professor Volokh notices that another aspect of Calabresi's remarks makes little or no sense. I think that Volokh's observations only bolster the case for viewing the Judge's speech as being political in tenor.

Update II: Professor Reynolds voices similar concerns regarding the inadvisability of such remarks. Meanwhile, Professor Volokh has indicated that he concurs that Judge Calabresi's statement is a clear violation of of the Code of Conduct.

Update III: At least one commentor has raised the Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), indicating that this case might make Canon 7 unenforceable. Professor Volokh has mentioned the possibility as well, but has indicated that such a result is less than certain regarding Canon 7(A)(2). Personally, I think that it is highly unlikely that White has any bearing on the present issue.

There are multiple reasons for my opinion, but they might be summarized as follows: White simply differs from the present situation in too many material ways to be instructive in this instance. I'll enumerate those distinctions, but let's begin by noting the obvious: White is a 5-4 opinion of recent vintage that breaks down along the traditional conservative/liberal axis. As the majority acknowledges, White constitutes a radical departure from recent judicial practice, id. at 785, and it is not at all certain that is will survive the test of time. Now for the distinctions.

First, White involved elected state judges, not unelected federal judges. Id. at 768. Second, the suit involved an entirely different Canon, one which disallowed judicial candidates from announcing their own views on "'disputed legal or political issues.'" Id. Third, as might be expected, White was threatened with discipline for attacking the views of an opposing candidate in an election in which White himself was competing. Id. at 768-69. In summary, the White case is nothing like the Calabresi incident. It would take a substantial extension of the decision in White to void Canon 7(A)(2).

Such an extension is terribly unlikely. Recall that this decision was 5-4. Justices Stevens, Souter, Ginsburg, and Breyer would have decided White differently on the merits. In addition, there were two individual concurrences, and the one by Justice O'Connor is particularly significant. O'Connor's concurrence, which criticizes judicial elections in general, placed extremely heavy emphasis on the fact that the judges at issue were elected officials. Id. at 788-92 (O'Connor, J. concurring). There is no indication that she would have joined the Court's majority in the absence of this circumstance. See id. at 792 (O'Connor, J. concurring) (indicating that states that choose to fill the bench via contested elections must also incur the risks associated with the greater speech rights of elective candidates).

Similar sentiments are expressed in Kennedy's concurrence. See id. at 794-96 (Kennedy, J. concurring). Of particular salience is Justice Kennedy's observation that, "[t]his case does not present the question whether a State may restrict the speech of judges because they are judges--for example, as part of a code of judicial conduct; the law at issue here regulates judges only when and because they are candidates." Id. at 796 (Kennedy, J., concurring). Moreover, even the majority opinion itself relied on, to some extent, the unique context of judicial elections. See id. at 774 (noting that speech concerns in case were at core of First Amendment because they pertained to "the qualifications of candidates for public office").

Moreover, even the majority also disavowed the notion that the free speech rights of even elected judges coincided with those enjoyed by traditional candidates. See id. at 783 ("[W]e neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office."). So O'Connor's and Kennedy's views on this aspect of the case are hardly idiosyncratic.

If someone wishes to put forward a cogent case for White's applicability, I am all ears.

Update IV: Will Baude comments on the issue, thinking it curious that "the Clerk doesn't discuss whether he thinks there ought to be a valid First Amendment claim against the Code of Conduct." As the foregoing discussion of White, supra Update III, indicates, I do not think that there is any valid First Amendment claim regarding Canon 7(A)(2) under these circumstances. Baude does not indicate what precisely he has in mind regarding the First Amendment apart from, perhaps, White.

Posted by Curmudgeonly Clerk at 10:30 AM | Comments (44)

June 20, 2004

Establishment and Incorporation

Justice Thomas's concurrence in Newdow has generated a good deal of commentary. I have updated my original post on the topic in order to reference and discuss some of this commentary.

Posted by Curmudgeonly Clerk at 03:29 PM | Comments (0)

June 19, 2004

Those Old Timey Torts

Roberts & Roberts has seen better days, if this San Antonio Express-News article is any indication. The story is a long and interesting read. In a nutshell, the following is what occurred.

Attorney Mary Schorlemer Roberts placed an ad on AdultFriendFinder, seeking extramarital relationship(s). The Express News reports that "[o]nline flirting and secret meetings followed." Apparently, these liaisons did not remain secret, however. Law parter and husband Ted H. Roberts subsequently sent what sounds like demand letters to his wife's paramours. Among other things, these documents appeared to assert the possibility of pre-lawsuit discovery and public disclosure of these affairs to wives and employers. Confidential settlements involving large sums of money were reached. Somewhere between $75,000 and $150,000 total was apparently recovered from Ms. Roberts's various lovers.

It is difficult to pin down the details or the sequence of events. Records in the lawsuit in which this all came to light have been sealed, and obviously the men who settled (most of whom were apparently married themselves) have little interest in clarifying matters. Perhaps, the most interesting excerpt from the article is this passage:

Mary Roberts aided her husband as he confronted her former lovers—typing, according to the transcript, parts of the documents that named her and her paramours as potential defendants.

She denied any role in drafting the documents but seemed to acknowledge making a distinction between drafting and typing.

Although the relevant Texas authorities cited in the article seem to concur that nothing unethical occurred, the situation is curious to say the least. The documents that Mr. Roberts forwarded to his wife's lovers apparently "each named Mary Roberts" as a potential defendant as well. It is therefore quite odd that she would be involved in their composition, even if only in a secretarial capacity.

What is even more interesting are the contents of these documents. Legal experts who looked at them noted that some of the possible claims asserted seemed to consist of creative pleading of tort claims like alienation of affection and criminal conversation. The reason that one must creatively plead such claims in Texas is because they no longer exist. Provisions of the Texas Family Code specifically abolish both causes of action. Tex. Fam. Code §§ 1.106, 1.107.

However, it is not clear that a claim for alienation of affection would pass muster under these circumstances even if it had not been abolished in Texas. Similarly, while a cause of action for criminal conversation would be viable, it would not be worth much in the way of damages. The Roberts case provides a nice occasion for briefly considering these two causes of action.

The common law cause of action known as criminal conversation basically allowed a husband (or wife) to sue a third-party for having had sexual intercourse with his spouse. It was, in essence a tort cause of action for adultery. Interestingly, this tort was only officially recognized in Texas in 1973 and abolished in less than two years. See Felsenthal v. McMillan, 493 S.W.2d 729, 729-30 (Tex. 1973) (5-4 decision recognizing cause of action for criminal conversation); Smith v. Smith, 126 S.W.3d 660, 664 (Tex. App.—Hous. [14th Dist.] 2004, no pet. h.) ("In 1975, as a direct response to Felsenthal, the Legislature abolished the cause of action of criminal conversation . . . .").

Alienation of Affection is a related but distinct cause of action. It was recognized in Texas in 1971. Smith, 126 S.W.3d at 665. Unlike criminal conversation, however, it enjoyed a longer existence, not being abolished until 1987. Id. A cause of action for alienation of affection arose "wehn the wrongdoer, who knows that the wife is married, intentionally sets out to and does divert her affections from her husband." Felsenthal, 493 S.W.2d at 731 (Steakley, J., dissenting). A prerequisite to suit was that the spouse was, in fact, alienated. Separation and an unwillingness to reconcile were necessary predicates of the cause of action. Id.

Hence, with criminal conversation it is the very extramarital sexual act that gave rise to a cause of action. Whereas, the same adulterous affair would not be actionable as alienation of affection unless it resulted in separation or divorce. Therefore, an adulterous relationship would generally always lead to liability under the former but not necessarily under the latter.

At common law, there apparently were no defenses to criminal conversation. Id. Once factually proven, liability was unavoidable. The fact that the wife consented or even initiated the affair was irrelevant. Norris v. Stoneham, 46 S.W.2d 363, 366 (Tex. Civ. App.—Eastland 1932, n.w.h.). So was the fact that the married couple had chosen to reconcile. See Swearingen v. Brey, 157 S.W. 953, 954 (Tex. Civ. App.—Amarillo 1913, n.w.h.) (noting that according to persuasive precedent from outside the jurisdiction that "condonation is not a defense"). However, there may have been an exception for situations in which both spouses consented to the extramarital act before the fact. See Felsenthal, 493 S.W.2d at 732 (Steakley, J., dissenting).

Although the cheating spouse's consent or even initiation of the affair was no defense to criminal conversation, it seems fairly well established that wantoness would lessen a recovery. See Felsenthal, 493 S.W.2d at 730 ("[P]erhaps the aggrieved spouse should not expect to recover anything but nominal damages in the case where the besmirched spouse has participated willingly."); Norris, 46 S.W.2d at 366 (stating of willing participation that "in some cases it has been admitted as bearing upon the quantum of damages"). It is difficult to know what to make of such a rule though. To allow solely nominal damages in any case where willingness is found on the part of the unfaithful spouse effectively reduces criminal conversation to a third-party tort action for rape. Rape was, in fact, included within the cause of action for criminal conversation, Felsenthal, 493 S.W.2d at 730, it is just difficult to conceive what else is included if recovery is more or less predicated on willing participation. In the end, this notion of willing participation seems to depend on rather antiquated (and sexist) notions like seduction. See, e.g., Swearingen, 157 S.W. at 953 ("The evidence discloses a deliberate, treacherous, and persistent course of conduct on the part of the appellant in debauching the wife of the appellee. That she was weak cannot be denied, but this fact only magnifies appellant's infamy.").

Alienation of affection also seems permeated by these rather old-fashioned notions of sex roles. The unfaithful spouse's enthusiasm for or initiation of the sexual liaison would utterly preclude a cause of action for alienation. See Cluck v. Cluck, 712 S.W.2d 599, 601 (Tex. App.—Corpus Christi 1986, n.w.h.) ("The cause of action 'must be grounded upon the intentional wrong-doing of a stranger to the marriage relationship rather than the wickedness of a recreant spouse.'"). One imagines that the sheer impossibility of applying such rules to contemporary social behavior and sexual mores is, in large part, what led to the cause of action's abolition. It would be difficult, to say the least, to apply alienation of affection in a society that regards grown women as adult actors with freewill and responsibility for their own conduct. Another motivation for its and criminal conversation's abolition was the well-recognized potential for blackmail extortion. Felsenthal, 493 S.W.2d at 730 n.2; Smith, 126 S.W.3d at 665-66.

Yet, notwithstanding these very good reasons for abrogating these two related causes of action, it is not altogether clear that they have disappeared in anything but name here in Texas. For example, in an opinion that lays out the history of the two causes of action in this state and notes their present nonexistence, the Houston Court of Appeals nonetheless writes that "appellant has other avenues of relief, including a cause of action for intentional infliction of emotional distress." Smith, 126 S.W.3d at 666. Intentional infliction of emotional distress has different legal elements to be sure. In Texas, a plaintiff must demonstrate that: "(1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe." Stites v. Gillum, 872 S.W.2d 786, 792 (Tex. App.—Fort Worth 1994, writ denied). But the Smith court nevertheless apparently thought that some circumstances that might have formerly been redressed via criminal conversation of alienation of affection may now be addressed though an intentional infliction of emotion distress claim.

Other Texas appellate courts have been less hospitable to such an approach. In Stites, for example, the court of appeals affirmed an $18,000 sanctions award for bringing a creatively pled alienation of affection claim, declining to recharacterize it as one for intentional infliction of emotional distress on the basis of the plaintiff's own characterization of the suit in his petition. 872 S.W.2d at 792-97. Previously, the same court of appeals had held that a suit alleging "infliction of mental anguish" premised on adultery was not actionable due to the Family Code's abolition of criminal conversation and alienation of affection. Truitt v. Carnley, 836 S.W.2d 786, 786-87 (Tex. App.—Fort Worth 1992, writ denied). Yet a different panel of judges in Stites indicates that whether an action for intentional infliction of emotional distress is precluded under circumstances that would have previously been addressed under the abolished causes of action remains an open question. 872 S.W.2d at 793 & n.6. No additional relevant Texas case law appears to exist. But see Helena Laboratories Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994) (per curiam) (holding that abolition of alienation of affection precluded suit attempting to hold employer "liable for failing to prevent two employees from engaging in extramarital relations").

Texas has little case law on this topic, because such suits are seldom brought. See Felsenthal, 493 S.W.2d at 732 (Steakley, J., dissenting). But the Roberts affair reminds us that seldom is not never. Mr. Roberts apparently asserted other causes of action as well. But in order to deter such litigation (or threatened litigation) in the future, I am inclined to think that the either the courts or the legislature should make it clear that intentional infliction of emotional distress may not be used as a vehicle for circumventing the state's Heart Balm statutes.

(Thanks to Overlawyered for bringing the Roberts story to my attention.)

Posted by Curmudgeonly Clerk at 08:29 PM | Comments (4)

June 18, 2004

The Once and Future Establishment Clause?

Justice Thomas is once again being castigated. This time it's for his concurrence in Elk Grove Unified Sch. Dist. v. Newdow, in which he writes that:

Because I agree with THE CHIEF JUSTICE that respondent Newdow has standing, I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.

* * *

I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus,unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.

* * *

The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." As a textual matter, this Clause probably prohibits Congress from establishing a national religion. Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress' power under the Necessary and Proper Clause.

Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from "abridging [particular] freedom [s ]." This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. History also supports this understanding: At the founding, at least six States had established religions. Nor has this federalism point escaped the notice of Members of this Court.

Quite simply,the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right. These two features independently make incorporation of the Clause difficult to understand. The best argument in favor of incorporation would be that, by disabling Congress from establishing a national religion, the Clause protected an individual right, enforceable against the Federal Government, to be free from coercive federal establishments. Incorporation of this individual right, the argument goes, makes sense. I have alluded to this possibility before.

But even assuming that the Establishment Clause precludes the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any individual right. For the reasons discussed above, it is more likely that States and only States were the direct beneficiaries. Moreover, incorporation of this putative individual right leads to a peculiar outcome: It would prohibit precisely what the Establishment Clause was intended to protect—state establishments of religion.

Thomas, J., concurring (internal citations omitted).

Although I risk commitment to an asylum, it seems to me that Justice Thomas is entirely correct. I must say that incorporation perfectly coincides with my own policy preferences in this case. But I am hardpressed to characterize the incorporation of the Establishment Clause as anything more or less than the naked enactment of policy preferences by the judiciary. That an amendment framed in general language, which was passed in the wake of the civil war and designed to address its concerns, was meant to abrogate the very specific religious accomodation of the Establishment Clause is a nonsensical proposition. Viewed in this light, Thomas merely observes the obvious.

What is, perhaps, radical is Thomas's apparent willingness to act on this observation. Hence, the more modest claim that Thomas is removed from "the Court's intellectual mainstream" is rather more defensible. At least three Justices have indicated an unwillingness to even reconsider incorporation of the Establishment Clause. See Lee v. Weisman, 505 U.S. 577, 624 n.5 (1992) (Souter, J., concurring and joined by Stevens and O'Connor) ("Such a position would entail the argument, which petitioners do not make, and which we would almost certainly reject, that incorporation of the Establishment Clause under the Fourteenth Amendment was erroneous."). And, given the role of stare decisis, I cannot claim that such a disinclination is by any means unreasonable.

However, it is noteworthy that two of the three referenced Justices are not in all likelihood destined to remain on the Court much longer. So, Professor Bainbridge's observation concerning the pivotal role of Supreme Court nominations in the immediate future is well taken. Although it may seem unlikely that the Court will reverse course at this late date, it is hardly an impossible outcome. Few if any apparently recognized the significance of then Associate Justice Rehnquist's lonely dissent in Fry v. United States, 421 U.S. 542 (1975).

Update I: Timothy Sandefur correctly takes me to task:

I do think the Clerk goes a little far—it’s not nonsensical to believe that the Fourteenth Amendment was intended to prevent states from establishing religions. In his brilliant The Bill of Rights: Creation And Reconstruction, Akhil Reed Amar explains that the Fourteenth Amendment might indeed be less of a window than a lens—that it might transform the concepts of the Bill of Rights while at the same time making them applicable to the states.

Others, such as Professor Douglas Laycock, apparently must share a similar view. So Sandefur is right: the notion that the 14th Amendment changes everything is not really nonsensical. I find Amar's view to be unconvincing where incorporation and the Establishment Clause are concerned, but being incorrect on the merits and being nonsensical are rather different. I try to avoid such inaccuracies in my posts, and I appreciate Sandefur's correction. There are thoughtful scholars who do not share my skepticism in this regard, and readers should be aware of that fact.

Update II: Notwistanding my personal preferences, which are decidely pro-incorporation in terms of policy, I indicate in the comments to this post that I am not overly concerned should incorporation of the Establishment Clause be rethought as Thomas suggests in his concurrence. There are two basic reasons for this. First, as Stuart Buck helpfully points out, the federal Constitution is not the sole protection from church-state entanglements enjoyed by Americans. Second, as a practical matter, I think that the fears of church-state entanglement announced by Professor Leiter, for example, while possibilities, may not materialize in the event of disincorporation. After all, even in the very conservative Lone Star State, those who would inject religion into the classroom were recently defeated through the political process.

Update III: Professor Solum has drawn my attention to a remarkably inane column by Professor Marci Hamilton on the topic of Newdow that bears somewhat on the topic of incorporation. Hamilton writes:

In the end, however, Thomas has a simple answer in this case: The Constitution doesn't reach a state's "under God" Pledge at all, because the Establishment Clause applies only to the federal government. So there was no reason for the Court to consider the Establishment Clause. Unfortunately, this simple answer is a wrong answer.

* * *

The history at the time of the framing is otherwise, however. The first draft of the First Amendment by James Madison applied to both state and federal government. Only politics—not principle—forced it to be limited to the states. And indeed, Madison himself firmly believed that State-established religion was an evil. Indeed, he was a member of a minority religion in the state of Virginia, where there was a longstanding established church against which he fought vigorously.

What is remarkable about this "argument," of course, is that Hamilton is maintaining that a draft that was REJECTED ought to control our interpretation of the provision as it was adopted. Yes, the prior draft ought to inform our interpretation, but doesn't the rejected draft inform us of an arrangement that the Founders expressly declined to adopt? While Madison, like Jefferson crusaded for disestablishment in Virginia, the Establishment Clause as we have it was specifically agreed upon to mollify delegates from states with established churchs. See A. James Reichley, Religion in American Public Life 109-11 (1985). Established state churches continued long after the ratification of the federal Constitution and were only gradually abandoned by the states themselves. See id. at 111 (e.g., Maryland in 1810, Connecticut in 1818, New Hampshire in 1819). Massachusetts was the last state to do so in 1833. Id.

And these establishments were not mere window dressing. Prosecutions for blasphemy were not unheard of in the early Republic, and more than one state court pronounced Christianity part and parcel of the common law. Id. at 115. Even those states that chose disestablishment were often directly entangled withreligion in other ways. See, e.g., id. at 136 (noting that, "most of the states, including those that did not maintain an established church, continued to support religious education in one form or another"). But Professor Hamilton's breathtaking ignorance on this topic is best revealed in the Supreme Court opinion of Permoli v. Municipality No. 1 of City of New Orleans, 44 U.S. (3 How.) 589, (1845), in which the Court explicitly held that:

The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.
Id. at 609. In short, history is hardly on Hamilton's side.

Oddly, Professor Hamilton does not devote much space to the passage of the Fourteenth Amendment, which is the only historical argument that might save her otherwise flimsy contention. She merely conclusorily asserts that her very mistaken impression of American history) "makes it clear that the Establishment Clause instituted an important principle that is rightly incorporated into the Fourteenth Amendment." As I indicated in the first update, supra, I find even this Fourteenth Amendment argument unconvincing. This interpretation was only put into practice long after the Civil War era. Reichley, supra, at 111. The meaning of the Amendment's broad wording is obviously not self-evident. Similarly, the intentions of its drafters and ratifiers were not necessarily congruent or free from ambiguity. Id. at 117-20. Historical practice immediately after its adoption was, however, rather free from ambiguity:

After the [Fourteenth] amendment was ratified, the governmental community showed no signs of perceiving that the entire Bill of Rights had been applied to the states. . . . For most of the governmental community, let alone the nation at large, the idea simply did not exist. . . . During the half century of dynamic national growth after the Civil War, the Supreme Court displayed reluctance in applying the prohibitions contained in the religion clauses of the First Amendment to the federal government, let alone the states.

Id. at 119-20. The Establishment Clause was not explicitly extended to the states until 1940 "in Cantwell v. Connecticut, although establishment had little or nothing to do with the case's substance." Id. at 135.

Update IV: Professor Solum reports a comment his colleague Kurt Lash made regarding the accuracy of Professor Hamilton's view of the Establishment Clause and Madison's intentions. Suffice it to say that Professor Hamilton's odd views find no support in Lash's comment.

Posted by Curmudgeonly Clerk at 09:06 AM | Comments (12)

June 16, 2004

Criminal Coffee Case

The Boston Globe contains a story on a new hot coffee case. The twist is that this case is criminal in nature:

An East Douglas man accused of throwing hot coffee in the face of another driver on Interstate 290 during an apparent road rage incident pleaded not guilty to assault and battery with a dangerous weapon in Worcester Central District Court yesterday, authorities said.

Presumably, even critics of Liebeck have no objections to this case.

(Link via Obscure Store.)

Posted by Curmudgeonly Clerk at 03:47 PM | Comments (9)

The Rod

Some time ago, I noted Canada's legal reconsideration of the parental administration of corporal punishment. In the end, the Supreme Court of Canada declined to abolish corporal punishment for the most part. In the United States, it continues to enjoy legality as well. See, e.g., Doe v. Heck, 327 F.3d 492 (7th Cir. 2003).

However, Canadian law apparently forbids the administration of corporal punishment by teachers. The situation is somewhat different in the United States, where corporal punishment by teachers remains legal in some states but is, perhaps, legally inadvisable nonetheless. The Houston Chronicle has an interesting article on the subject:

So far, about 28 states have banned the practice in public schools because of the potential for abuse and lawsuits. Yet Texas continues to lead the nation with nearly 75,000 students paddled in 2000, according to a survey by the Ohio-based Center for Effective Discipline.

In Harris County, more than half of the school districts continue to paddle students or have a policy that allows it.

Overall, federal statistics show that Southern states have the most incidents of corporal punishment. By percentage of students paddled, Texas ranks about seventh in the nation. Mississippi and Arkansas were No. 1 and 2 in the country, respectively.

* * *

Harris County school districts that still have corporal punishment allow parents to decide whether their children will receive it. In most school districts, parents must submit a form or write a letter stating that they prohibit their child from being paddled.

* * *

Area school districts that have abolished corporal punishment have done so for liability reasons or because they have found that other methods of discipline work just as well, if not better, officials said.

* * *

The Houston school district officially banned paddling in 2001 but stopped the practice in fall 1997, said Norman Uhl, district spokesman.

Since ending the punishment, district statistics show that the number of disciplinary actions, including expulsion, suspensions and police referrals, has risen by about 46 percent districtwide, while the number of students has increased by less than 2 percent.

Although I am not opposed to parental corporal punishment, I would be personally disinclined to confer such authority on public school teachers. The Harris county opt-out policy strikes me as a sensible enough accomodation from the parental perspective. But given the liability concerns, I was surprised at the number of school districts that continue to allow corporal punishment.

Educators and school districts can win such cases. See, e.g., Johnson v. Resendez, 993 S.W.2d 723, 727-28 (Tex. App.—Dallas 1999, pet. dism'd w.o.j.) (rejecting § 1983 claim arising out of spanking with wooden spoon); see also Spacek v. Charles, 928 S.W.2d 88, 95 (Tex. App.—Hous. [14th Dist.] 1996, writ dism'd w.o.j) (noting that Texas law "is generally expressive of the common law majority rule that public school teachers standing in loco parentis may use reasonable force to discipline their charges" and that, as such, "teachers may use reasonable force not only to punish wrongful behavior, but also to enforce compliance with instructional commands"). But even litigation that one wins is expensive. And litigation lodged by parents on behalf of their children is hardly the sole legal concern. See, e.g., Krajewski v. Area Co-op Educ. Servs., No. 374594, 1998 WL 516219, at *1 (Conn. Super. Ct. July 31, 1998) (unpublished opinion) (lawsuit arising out of teacher's refusal to obey superior's order to employ corporal punishment); Burton v. Kirby, 775 S.W.2d 834, 835-37 (Tex. App.—Austin 1989, n.w.h.) (teacher unsuccessfully sued state education commissioner after being terminated for excessive corporal punishment).

Of course, even the abandonment of corporal punishment does not preclude related litigation. See, e.g., Daily v. Bd. of Educ. of Morrill County Sch. Dist., 588 N.W.2d 813, 820-26 (Neb. 1999) (teacher unsuccessfully sued school district for disciplining him for administering corporal punishment in jurisdiction that forbids same but permits physical contact for purposes of restoring order). So this may be a situation in which the public schools have no palatable alternatives.

(Chronicle link via Texas Law Blog.)

Posted by Curmudgeonly Clerk at 09:05 AM | Comments (1)

June 15, 2004


Having been rather critical of her in the past, I feel obligated to note that Dahlia Lithwick is quite right in her defense of the High Court's standing-based decision in Elk Grove Unified Sch. Dist. v. Newdow. I think that reasonable minds may differ on the constitutional issue, but the reportage and state-court litigation concerning custody gives one the impression that that Michael Newdow is a self-involved ideologue or lunatic with an awfully limited sense of what's in the best interests of his child. Newdow, of course, intends to relitigate the issue.

Posted by Curmudgeonly Clerk at 09:31 AM | Comments (25)

June 14, 2004

We Resume Our Regularly Scheduled Program In Progress

While I was away, I managed to compose a meager three posts, two of which concerned torture:

The Weird World of Litigation

Nothing New Under the Sun


I am not sure what, if anything, should be inferred from the fact that both times I have sojourned at Crescat Sententia I have felt compelled to discuss torture.

Posted by Curmudgeonly Clerk at 08:35 AM | Comments (1)

June 08, 2004

Clerk Media Coverage

The June 2004 issue of the California Lawyer features a story on legal weblogs that references this site on a very short list of blawgs. Among the more interesting observations is this one about the intersection between legal weblogs and the legal system:

Blawgs are becoming so authoritative, in fact, that at least two blawgs have been cited in opinions and briefs: When Howard J. Bashman, an appellate lawyer in Fort Washington, Pennsylvania, whose two-year-old How Appealing site boasts more than 10,000 visits a day, used his blawg to point out an error in a footnote to an opinion published by the U.S. Fifth Circuit Court of Appeals, the judge fixed the mistake and then emailed Bashman a thank-you note. Bashman's blawg, along with several others, has also been cited in a U.S. Ninth Circuit Court of Appeals opinion, Batzel v. Smith (351 F.3d 904, 906 n.3 (2003)). And in an attempt to show that old-fashioned punch-card ballots could be more accurate than new voting systems, lawyers for recall advocate Ted Costa referenced both The Volokh Conspiracy and How Appealing in a brief submitted to the Ninth Circuit.

I doubt that this humble site is going to be cited in any legal briefs or opinions in the near future, though I do occasionally garner a mention in Law.com's Today's Brief feature. Nonetheless, it is genuinely flattering to be placed in the same company as the more well-known weblogs that appear in the article's brief list. I'd like to extend my thanks to the article's author, Susan E. Davis, for the mention.

Posted by Curmudgeonly Clerk at 09:58 AM | Comments (2)

June 07, 2004


Crescat Sententia's impresario, Will Baude, has been kind enough to invite me to share my musings over there this week. Readers in search of my usual curmudgeonry should head thither.

Posted by Curmudgeonly Clerk at 01:28 PM | Comments (0)

June 06, 2004

More Frivolous Copyright Litigation

Via How Appealing, I see that the "Moors" are up to their old tricks. This bit about copyrighting one's own name is so positively nutty than even other crackpot organizations have disavowed it.

Posted by Curmudgeonly Clerk at 06:40 PM | Comments (2)

June 04, 2004

"Homosexual" As Defamation

In another interesting homosexuality-related case from Massachusetts, a federal district judge has ruled that, as a matter of law, being dubbed a "homosexual" cannot constitute libel:

The ruling by U.S. District Judge Nancy Gertner came as she threw out a lawsuit by a former boyfriend of pop singer Madonna who claimed he was libeled because his name appeared in a photo caption in a book about Madonna under a picture of Madonna walking with a gay man.

"In fact, a finding that such a statement is defamatory requires this court to legitimize the prejudice and bigotry that for too long have plagued the homosexual community," she wrote in her opinion Friday.

* * *

Gertner said other courts' rulings that stating someone is homosexual is defamatory had relied on laws criminalizing same-sex sexual acts that might well be unconstitutional. Previous decisions hadn't taken into account more recent decisions recognizing gays' equal rights, she said.

The court's full decision granting the defendants' Rule 12(b)(6) motion to dismiss is available in .pdf here. In her opinion, Judge Gertner, who was nominated by President Clinton, writes that:

In 2004, a statement implying that an individual is a homosexual is hardly capable of a defamatory meaning.

* * *

In this day and age, recent rulings by the Supreme Court and the Supreme Judicial Court of Massachusetts, undermine any suggestion that a statement implying that an individual is a homosexual is defamatory. In fact, a finding that such a statement is defamatory requires this Court to legitimize the prejudice and bigotry that for too long have plagued the homosexual community.

* * *

To maintain an action for defamation of a non-public figure, a plaintiff must allege facts to show that (1) a defendant made a false statement "of and concerning" the plaintiff; (2) the statement could damage the plaintiff's reputation in the community; (3) the defendant was at fault in making the statement; and (4) the statement caused economic harm or is actionable without proof of economic loss. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30 (2003); Reilly v. Associated Press & Others, 59 Mass. App. Ct. 764, 769 (2003), cert denied, 441 Mass. 1103 (January 29, 2004).

The parties have focused on the second factor—whether the statement could damage Albright's reputation in the community.

* * *

The threshold question—whether the statement is susceptible to a defamatory meaning in either case—is a question of law for the Court.

* * *

Only if a publication is susceptible to both a defamatory and non-defamatory meaning does it present a question of fact for a jury. The "statement" alleged here does not present an issue of fact for the jury.

Albright v. Morton, C.A. No. 02-11458-NG (D. Mass. May 28, 2004) (some internal citation omitted).

The next portion of the opinion concerns another issue. Specifically, Judge Gertner discusses whether the publication in question actually states or implies that the plaintiff is a "homosexual." Judge Gertner finds that such a reading is implausible. Without having had the opportunity to review the actual publication at issue, the court's description of it lends considerable plausibility to its finding that the publication does not, in fact, make any such assertion. Indeed, the plaintiffs' claims to the contrary seem rather farfetched. On this point alone, Judge Gertner rules as a matter of law that:

No reasonable view of the photograph and text would suggest that Albright is gay. It, therefore, cannot be construed as defamatory at all.


But Judge Gertner does not stop there. She goes on to write that:

Even if I were to find that the photograph and caption somehow state or imply that Albright is a homosexual, I could not find that such a statement is capable of a defamatory meaning. Looking at any "considerable and respectable class of the community" in this day and age, I cannot conclude that identifying someone as a homosexual discredits him, that the statement fits within the category of defamation per se.

While courts outside this jurisdiction are split on whether a statement wrongfully identifying someone as homosexual is defamatory per se, their decisions rely on statutes criminalizing same sex sexual acts (statutes which may well be unconstitutional), and fail to incorporate more recent decisions recognizing homosexuals' equal rights.

First, the large majority of the courts that have found an accusation of homosexuality to be defamatory per se emphasized the fact that such a statement imputed criminal conduct. This rationale is extinguished by the Supreme Court's recent ruling in Lawrence v. Texas, 539 U.S. 558 (2003), finding a Texas statute criminalizing same sex sexual conduct unconstitutional under the Due Process Clause because individuals have a right to privacy to engage in sexual acts in their homes.

* * *

Second, I reject the offensive implication of plaintiffs' argument that, even without the implicit accusation of a crime, portions of the community "feel [homosexuals] are less reputable than heterosexuals," as plaintiffs allege in this Complaint. Plaintiffs cite various state statutes to illustrate societal contempt for homosexuals, including legislation against gay marriage and court decisions specifically denying same-sex marriage. Defendants counter with examples of Massachusetts statutes prohibiting discrimination on the basis of sexual orientation.

Plaintiffs' arguments are especially unavailing in light of the Supreme Judicial Court's recent decision in Goodridge v. Department of Public Health, 440 Mass. 309 (November 18, 2003), finding limitations on same sex couples' ability to marry unconstitutional.

* * *

While the Court's language acknowledges that a segment of the community views homosexuals as immoral, it also concludes that courts should not, directly or indirectly, give effect to these prejudices. If this Court were to agree that calling someone a homosexual is defamatory per se—it would, in effect, validate that sentiment and legitimize relegating homosexuals to second-class status.

* * *

[T]he category "defamation per se" should be reserved for statements linking an individual to the category of persons "deserving of social approbation" like a "thief, murderer, prostitute, etc." To suggest that homosexuals should be put into this classification is nothing short of outrageous.

Id. (some internal citation omitted).

Given that this case was dismissable on other grounds (i.e., the aforementioned factual flimsiness of plaintiff's case), it is interesting that Judge Gertner chose to write on the legal aspect (i.e., whether accusations of homosexuality can ever be defamatory). Although it is not uncommon for trial judges to justify their rulings on multiple bases so as to avoid any possibility of being overturned, Judge Gertner seems to have gone out of her way to address a more controversial matter. Assuming the case is not appealed, the portion of the court's opinion under discussion is mere dicta. But it is dicta that is capturing the headlines, and I imagine that it is the dicta that will capture attention in legal circles as well.

I am not entirely convinced that Judge Gertner is correct as a matter of law on the legal issue either. Recall that the element of the defamation claim placed in question by the parties was the second one—i.e., whether the statement could damage the plaintiff's reputation in the community. It is pretty self-evident that Judge Gertner simply sidesteps this issue. Gertner's opinion acknowledges that there a significant subset of the community that views homosexuality as morally odious, but utterly discounts the potential damage that an imputation of homsexuality would naturally have among such folks on public policy grounds (i.e., the judge's contention that contemplating such harm would somehow validate the community's beliefs).

Let's imagine a scenario in which Judge Gertner's rule plays itself out. Conceive of, if you will, that one "Wrongly Accused Ralph" is in contention for promotion from a teaching to an administrative position at a conservative sectarian school. But another candidate, "Devious Dan," has other plans. Dan proceeds to circulate a rumor that Ralph is a closeted homosexual. The rumor has no basis in truth, but let's assume that Dan manages to present sufficient circumstantial evidence to lend his would-be calumny credibility. Whatever the outcome, Ralph's reputation in his community may well be damaged. But under Judge Gertner's rule, a lawsuit is not even tenable.

Judge Gertner's only response appears to be that (a) no one should regard homosexuality as a negative thing, and (b) courts should not lend credence to such unfortunate prejudices. But note the utter disconnect between Judge Gertner's socio-political preferences and the present state of defamation law. The legal issue is whether a particular false statement could damage someone's reputation, not whether any given statement ought to do so. In other words, what should be the case is actually irrelevant to whether a statement could be defamatory.

Perhaps in anticipation of such a critque, Judge Gertner offers a nice, albeit flawed, potential reply:

Perhaps the best way to understand the inappropriateness of plaintiffs' position is to put it in two very different contexts. First, I will compare it to statements falsely linking a plaintiff to racial, ethnic or religious groups, which plainly would not qualify as defamation per se today.

* * *

Thus, if Albright claimed that he was a white person wrongfully labeled African-American, the statement would not be defamation per se, even if segments of the community still held profoundly racist attitudes. In the 1900's, such statements were regularly deemed defamatory in a number of decisions that seem anachronistic, if not offensive, to modern eyes. For example, in Bowen v. Independent Publishing Company, 96 S.E.2d 564 (S.C. 1957), the Supreme Court of South Carolina found that it was libelous per se to include a white person's name in connection with a news item under the heading "Negro News," because of the continued existence of social prejudice against African Americans. Citing cases stretching back to 1791, the Court concluded that neither the abolition of slavery, nor changes in the "legal and political status of the colored race" warranted a departure from South Carolina precedent. Id. at 565. What the Court was doing, in effect, as one commentator noted, was "assuming without question that the plaintiff's community was a 'considerable and respectable' one whose values are worthy of the law's attention, respect, and support," and in doing so, "validate[d] racist views." Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L. Rev. 1, 30 (January 1996). Recent opinions expressly reject the premises of the earlier law. See Thomason v. Times-Journal, Inc., 379 S.E.2d 551 (Ga. Ct. App. 1989) (refusing to concede that plaintiff may have suffered from social prejudice of others where plaintiff sued over the publication of a false obituary that gave a funeral home listing that catered to a primarily "black clientel [sic]").


Judge Gertner's rejoinder has a temporal difficulty, however. The difference between the Bowen and Thomason cases is 32 years! In short, by 1989, a court could, given society's radically evolved moral consensus concerning race, accurately declare that ethnic and racial misidentifications no longer could be defamatory in the community at large. The same may be true of homosexuality some time from now, but it is not so at present. Although my hypothetical example involved a particular subcommunity that would be especially apt to find accusations of homosexuality to be damaging, polling data suggests that such attitudes are by no means limited to an insular segment of society. We all know this, of course. For every bit of evidence that Judge Gertner might cite regarding an incipient consensus concerning homosexuality's acceptability (such as Lawrence), it is possible to cite a contrary piece of evidence (e.g., DOMA, Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a slew of stories from professional sports). Indeed, when viewed in light of the present contentious debate on homosexuality, Judge Gertner's opinion seems less a reflection of society's mores than a judicial attempt to dictate them.

Indeed, I think that Judge Gertner's opinion fairly concedes as much. Her reasoning makes clear that her reluctance to allow a defamation claim to go foward, in large part, depends on her personal assessment that it would amount to the court's endorsement of what she views as an unfortunate and unjustified societal prejudice against homosexuality. Note how completely at odds this sentiment is with the foregoing rationale that, in this day and age, accusations of homosexuality lack any potential defamatory content. Second, is it really so that a court's mere consent that a suit proceed to be heard by a jury constitutes a commentary of the validity of the suit or its underlying theory of liability? That is, would a federal court truly be lending credence to what Judge Gertner perceives as homophobia by allowing the suit to go forward? I think not.

I suppose that some who agree with Judge Gertner's activism in this case will be rather unresponsive to the foregoing points. Some will simply conclude that she arrived at the proper result and that this is all that matters. I suspect that the more lawyerly among my disputants will, however, be inclined to criticize my characterization of Judge Gertner's opinion as "activist" in nature. It is in vogue to hold that the very notion of an activist court is meaningless these days. However, I think that I can demonstrate that this is false in this case. Quite apart from the point I made about Judge Gertner's willingness to pen controversial dicta in this case, the court was sitting in diversity. Accordingly, it was bound to apply Massachusetts's law of defamation under the principles announced in Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Judge Gertner is not, after all, asserting that her decision is one of constitutional dimension, notwistanding her reliance on constitutional cases like Lawrence and Goodridge.

However, it appears that Judge Gertner simply ignored Massachusetts law in this case. On May 18, 2004, some ten days before Judge Gertner issued her opinion, the Supreme Judicial Court of Massachusetts found that, under the state's law, a false accusation of homosexuality is actionable as defamation. Callahan v. First Congregational Church of Haverhill, 808 N.E.2d 301, 304, 314 n.19 (Mass. 2004). The fact that the Supreme Judicial Court of Massachusetts references cases that predate Lawrence and Goodridge in support of this contention demonstrates that Judge's Gertner's conviction that those cases alter the defamation calculus is not shared by the state's high court. See id. at 314 & n.19 (citing Gray v. Press Communications, LLC, 775 A.2d 678, 683-84 (N.J. 2001), which collects other cases). It could be that Judge Gertner just failed to note the recent Massachusetts decision, of course, but her opinion gives no indication that she ever looked. On this specific topic she notes only cases from "outside this jurisdiction" without ever stating that none existed from within and then discards them on the basis of Lawrence and Goodridge. Morever, the judge's specific language simply indicates that her own policy preferences are what is at work rather than her understanding of Massacusetts's law (e.g., "I reject the offensive implication of plaintiffs' argument . . . .").

(Thanks to the Legal Reader for bringing this case to my attention.)

Posted by Curmudgeonly Clerk at 05:46 PM | Comments (15)

Liebeck Redux

Law.com features an interesting article concerning the Liebeck lawsuit (i.e., the infamous McDonald's coffee case). Among the more interesting bits:

Apart from the rhetoric, Liebeck's case had a serious impact on daily life. Coffee sellers absorbed the jury's message and subsequently added safety features such as better-gripping lids. The suit's effect on the courts wasn't as lasting. McDonald's Corp. settled it rather than pursue appeals. And the case never prompted a flood of coffee-spill cases in the civil courts.

* * *

But [S. Reed] Morgan [the plaintiff's attorney in Liebeck] and his coffee-cup cause are about to move back to the front burner. He has a new McDonald's coffee case, one that closely resembles the Liebeck case—and his first set to go to trial since then. Morgan's opening statement is scheduled for July in Post, Texas. Maxine Villegas, a grandmother in her 70s, was a passenger in a car stopped at a drive-through, where coffee splashed on her legs and left third-degree burns. Villegas testified in a deposition that coffee spilled out as her sister passed the cup.

* * *

In the courtroom, though, McDonald's and other sellers have fought back against the jury finding that Liebeck was handed unreasonably hot coffee. In the couple dozen cases that have gone to trial since 1994, coffee sellers have pointed out that the beverage must be brewed at 195 to 205 degrees Fahrenheit, or else the grounds won't release the flavor. Moreover, most people prefer coffee at 161.8 degrees Fahrenheit, a University of California at Davis study shows, which is why, says Lingle, the industry's standard serving temperature is 160 to 185 degrees. Although Morgan's experts had testified in the Liebeck case that coffee of 170 degrees would cause second-degree skin burns in two seconds, one's tongue and mouth lining are thicker than one's skin. What scars your hand melts in your mouth.

(Law.com link via Howard Bashman.)

Update: There are, of course, a multitude of replies that one might offer to such a hyperbolic and manifestly silly response, but I think that I will confine myself to simply invoking Godwin's Law for the time being.

Posted by Curmudgeonly Clerk at 10:30 AM | Comments (2)

June 01, 2004

Libertarian Party And The Income Tax

The other day, I was commenting on the apparent association between primitive libertarinianism and nutty ideas about the federal income tax. In an apparent vindication of my surmise, the Libertarian Party has nominated Michael Badnarik for president. According to this interview, this is among the first things that Badnarik would do upon assuming office:

Issue another valid executive order to my subordinates executives working for the IRS. That order would instruct them to come to work, make a pot of coffee, and begin working on their resumes' pending a federal grand jury investigation as to the legitimacy of the Sixteenth Amendment and the Internal Revenue Code. High ranking officials from that department would be closely monitored as flight risks, pending indictments for fraud in the event that evidence proves that they knew that no statute exists that requires Americans to fill out a 1040 form and relinquish a significant percentage of their hard earned money to an unconstitutional government that refuses to operate within a budget.

The Party's website identifies Badnarik as a "constitutional scholar", but his own biography (a cached version is available here) gives no indication of any credentials or publications that would justify use of the term "scholar" in its usual sense. Another biographical sketch also fails to reveal any such details. It appears that he once maintained a weblog of his own, and there is apparently a wealth of material online concernng him.

Update: What is interesting is that a prior Libertarian Party nominee explicitly dissociated himself from the tax protestor movement. Although Harry Browne was prone to ridiculous rhetoric on tax issues (e.g., "Well, we would tear down the IRS building and sell the pieces—and use the proceeds to help IRS agents find honest work."), he specifically noted that:

The drive to prove that no one owes income taxes is not a libertarian cause. It does nothing to show people that government programs hurt, rather than help, America. By trying to focus on legalisms, it does nothing to show that government shouldn't be taxing your income.

He also noted those sections of the Internal Revenue Code that require payment of the federal income tax. One wonders whose views—Browne's or Badnarik's—prevail among the rank-and-file party members.

Posted by Curmudgeonly Clerk at 10:50 AM | Comments (11)


FOXNews viewer Brett Marston is disappointed with Brit Hume's denigration of the press. In a post entitled "On Not Being Cynical," Marston writes:

Just heard Brit Hume mock Juan Williams on Fox News Sunday for saying that journalists should be critical of authority. Don't have the transcript, but it sounded to me like Hume said "ah, the romance of journalism . . . speak truth to power." Would be funny if it weren't so revealing about the journalistic ethos of Fox's managing editor and chief Washington correspondent.

* * *

What is journalism about if it's not about checking authority? A network that bills itself as featuring "the most powerful name in news" has already given its answer, I think.

I understand Marston's point, I think, but I am not so sure that I share his assessment on the whole. Initially, it seems to me that the title of his post is misplaced. After all, the notion of the press as a check on corruption, abuse of power, etc. itself reflects, in some measure, (justified) cynicism concerning government. Following the news and avoiding cynicism are mutually incompatible activities. Of course, this fact only bolsters Marston's main conclusion about the value of the press.

The problem with Marston's thesis is that the news industry routinely provides plenty of reason for being cynical, not only about those people and events that it covers but about the press itself. In this regard, it is hard not to notice that Marston himself seems manifestly cynical where FOXNews is concerned. There is a whole subset of journalism devoted to covering the press itself, and its coverage often fails to inspire confidence. Of course, I hardly need to belabor this point with weblog readers, who are doubtless aware of the online genre of news-criticism known as "fisking."

The "truth to power" conception of the press is often rather risible. Many journalists are less than disinterested. We all know this, notwithstanding protestations to the contrary. Even those who might genuinely attempt neutrality frequently employ unidentified "sources" who are anything but impartial. Such access doubtless has its price. The news industry is sometimes referred to as the Fourth Estate, a designation that indicates that the press is itself a political power or an adjunct to other powers. And setting aside this factionalism, those of us who have a professional expertise, such as the law, know full well that the situation is exacerbated by journalistic incompetence and laziness.

This is not to say that the press is worthless by any means. Thomas Jefferson probably had it right when he wrote that:

The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.

But Jefferson had no illusions about the state of the press. A couple of examples of Jefferson's criticism will suffice:

I deplore . . . the putrid state into which our newspapers have passed and the malignity, the vulgarity, and mendacious spirit of those who write for them. . . . These ordures are rapidly depraving the public taste and lessening its relish for sound food. As vehicles of information and a curb on our funtionaries, they have rendered themselves useless by forfeiting all title to belief. . . . This has, in a great degree, been produced by the violence and malignity of party spirit.

* * *

I really look with commiseration over the great body of my fellow citizens who, reading newspapers, live and die in the belief that they have known something of what has been passing in the world in their time, whereas the accounts they have read in newspapers are just as true a history of any other period of the world as of the present, except that the real names of the day are affixed to their fables. General facts may indeed be collected from them . . . but no details can be relied on.

Like Jefferson, I am satisfied that a free press is necessary, but it should by no means be immune from the selfsame skepticism that it exhibits in its coverage.

Posted by Curmudgeonly Clerk at 09:24 AM | Comments (2)